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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Taxation

INCOME TAX

Proposed amendments constituted collateral attack on warrant

Canada Revenue Agency investigated appellant for variety of offences under Income Tax Act (Can.), and Excise Tax Act (Can.). In course of its investigation, agency applied for and obtained search warrant pursuant to s. 487 of Criminal Code (Can.). In his notice of application, appellant challenged his tax liability, warrant’s validity and agency’s decision to apply for warrant under Code rather than Acts. He subsequently sought to amend his notice of application. Prothonotary dismissed motion. Appellant appealed prothonotary’s decision to Federal Court. Judge dismissed appeal and determined that prothonotary’s decision was correct. Judge held that proposed amendments constituted collateral attack on warrant, challenged primarily administrative investigatory steps, had no hope of success and were not in interests of justice. Appeal was dismissed. Proposed amendments, to extent that they may peripherally touch on warrant application issue, were superfluous. Appellant’s challenge to agency’s policy of obtaining warrants under Code, rather than under Acts, was on table by virtue of original notice of application. Neither prothonotary nor judge erred in denying appellant leave to amend his notice of application.

Lawson v. M.N.R.
(Mar. 7, 2012, F.C.A., Blais C.J., Evans and Layden-Stevenson JJ.A., File No. A-192-11) 212 A.C.W.S. (3d) 872 (6 pp.).

Communications Law

POSTAL COMMUNICATIONS

Employer’s operations so local to suggest it was not federal undertaking

This was application for judicial review of Canada Industrial Relations Board’s decision certifying union as sole bargaining agent for employer’s employees. Employer was bicycle and pedestrian courier company. Employer delivered time-sensitive letters and packages within Greater Toronto Area. Board held that employer was providing postal service within meaning of s. 91(5) of Constitution Act, 1867, and that its operations fell within competence of Parliament. Board found it had jurisdiction to certify union as sole bargaining agent for employer’s employees. Application granted. Employer’s business involved collection, transportation and delivery for fee of time-sensitive letters and small packages exclusively within Greater Toronto Area. Item was usually delivered on same day it was collected. Employer had no connection with Canada Post or any intra-provincial service. Employer’s habitual activities and daily operations were so local and limited in nature to suggest that it was not federal undertaking. Choice of singular “postal service” in s. 91(5) of Act supported employer’s position that there was only one postal service in Canada. Employer had none of essential characteristics of postal service. “Postal service” in s. 91(5) of Act referred to national delivery system, currently operated by Canada Post. Board had no jurisdiction to grant union’s certification request and certification order was quashed.

TurnAround Couriers Inc. v. C.U.P.W. (Feb. 2, 2012, F.C.A., Blais C.J., Evans and Sharlow JJ.A., File No. A-441-10) 212 A.C.W.S. (3d) 714 (25 pp.).

Civil Procedure

COMMENCEMENT OF PROCEEDINGS

Decision to grant amendments not vital to final outcome of case

Prothonotary granted leave to respondents to amend their pleading by adding five paragraphs. Broadly speaking, five paragraphs alleged that appellant was estopped from litigating certain findings of fact made in decision of United States District Court, Southern District of New York. Federal Court Judge dismissed appeal from that order. Federal Court Judge found that prothonotary’s decision to grant amendments was not vital to final outcome of case. Federal Court Judge found that appellant failed to demonstrate that prothonotary based his decision on wrong principle or upon misapprehension of facts. Further, Federal Court Judge observed that even if he exercised his discretion de novo, he would have allowed amendments. Appeal dismissed. Substantially for reasons offered by Federal Court, appellant had not demonstrated that, in granting amendments, prothonotary based his decision on wrong principle or upon misapprehension of facts. On their face, paragraphs alleged facts, not foreign court’s construction of claims in patent, and alleged legal result, that issue estoppel arose from them. It was not plain and obvious at this time that facts alleged were inextricably bound or related to foreign court’s construction of claims and that these paragraphs could not succeed in law. It would be for trial judge to determine on evidence whether facts alleged in these paragraphs were proven and whether, in law, they gave rise to issue estoppel.

Astrazeneca Canada Inc. v. Apotex Inc. (Feb. 29, 2012, F.C.A., Dawson, Trudel and Stratas JJ.A., File No. A-211-11) Decision at 205 A.C.W.S. (3d) 907 was affirmed. 212 A.C.W.S. (3d) 24 (8 pp.).

Industrial and Intellectual Property

COPYRIGHT

Publication done without consent of respondent

Respondent claimed that appellants infringed copyright in his literary works, particularly “Farmans” and “Talikas”.
Appellants admitted that “Farmans 1957-2009 - Golden Edition” included literary works covered by copyrights owned by respondent but claimed that respondent gave consent to publication. Book presented to respondent at 1992 Mehmani ceremony.
It had been printed by appellants few days prior. No indication as to who printed book or prepared compilation and no notice given to respondent, or anyone within his organization, of intention to seek respondent’s consent to reproduction, distribution and sale of copyrighted literary work included in book.
No evidence respondent knew or ought to have known that book not simply compilation printed for family’s personal use. Respondent applied for summary judgment on basis there was no possible genuine issue whether respondent gave consent.
Motion judge granted motion for summary judgment and permanent injunction precluding publication of Golden Edition and accompanying MP3 audio bookmarks. Appellants’ appeal dismissed. Not disputed that consent pursuant to Copyright Act (Can.), could be either express or implied.
Test to be applied objective with focus on whether owner of copyright can be presumed to have consented to otherwise infringing actions. Subjective belief in consent not particularly relevant.
Evidence established there was no genuine issue with respect to consent. Respondent filed material indicating he encourages followers to reflect on guidance he provides and believes that availability and level of circulation of his teachings not
satisfactory but these facts insufficient to establish consent.
Only inference to be drawn on evidence was that publication of Golden Edition done without consent of respondent. Appellants did not establish any defence based on laches, detrimental reliance or acquiescence.
Facts did not establish that respondent had appropriate knowledge of appellants’ activities at relevant time.

Aga Khan v. Tajdin (Jan. 16, 2012, F.C.A., Nadon, Sharlow and Gauthier JJ.A., File No. A-59-11; A-60-11) Decision at 329 D.L.R. (4th) 521, 199 A.C.W.S. (3d) 1280 was affirmed. 211 A.C.W.S. (3d) 440 (13 pp.).

Administrative Law

FREEDOM OF INFORMATION

Disclosing records to commissioner does not amount to revealing them

Canadian Broadcasting Corp. (“CBC”) received almost 900 access to information requests pursuant to Access to Information Act (Can.). Almost 200 of those requests refused and almost 100 of refused requests subject of complaints to Information Commissioner of Canada. Proceedings related to 16 refused requests that were subject of complaints. Section 68.1 of Act creates exclusions for three types of information but subject to exception that Act does not apply to information under control of CBC that relates to its journalistic, creative or programming activities, other than information relating to its general administration. CBC refused majority of access requests on ground that information requested related to journalistic, creative or programming activities without explanation as to exact nature of exclusion invoked. Commissioner ordered CBC to provide records related to 16 impugned requests pursuant to s. 36 of Act. Section 36 grants commissioner power to compel persons to produce documents requisite to investigation of complaint and to “examine any record to which [the] Act applies that is under the control of a government institution”. CBC argued records excluded from Act not records to which Act applies within meaning of s. 36. Federal Court Judge found that commissioner had to examine information excluded under s. 68.1 to determine whether exception applied. CBC appealed, seeking declaration that invocation of exclusion in s. 68.1 has effect of depriving commissioner of power to examine documents subject to refusal. Appeal dismissed. Documents referred to in s. 36(1)(a) must be subject to Act or, at least, capable of being viewed as such at time of examination. Otherwise, words “to which this Act applies” in s. 36(2) superfluous. Excluded record does not meet this requirement. Section 68.1 is exception to exclusion. Impossible for commissioner to determine whether information relates to general administration of CBC, and thus falls under s. 68.1 exception, without authority to review records, including those relating to journalisitc, creative or programming activities. Exclusions pertain not to records but rather to information. Nature of exception such that it may overlap with excluded information with result that review by commissioner required to give effect to exception. Parliament intended that information related to journalistic, creative or programming activities be excluded from application of Act but wanted information related to CBC’s general administration to not be excluded. Commissioner’s role to initially determine whether exception applies and to exercise recommendation power. Commissioner’s investigations confidential; disclosing records to commissioner does not amount to revealing them. Difficult to see prejudice if commissioner to take cognizance of records.

Canadian Broadcasting Corp. v. Canada (Information Commissioner) (Nov. 23, 2011, F.C.A., Noel, Trudel and Mainville JJ.A., File No. A-391-10) Decision at 194 A.C.W.S. (3d) 346 was affirmed. 210 A.C.W.S. (3d) 384 (37 pp.).

Industrial And Intellectual Property

PATENTS

Respondent prevented from getting into market because of appellant’s prohibition application

Appellant’s application for prohibition prevented respondent from marketing Apo-Norfloxacin for over five years. Relying on s. 8 of the Patented Medicines (Notices of Compliances) Regulations (Can.), respondent sued appellant for damages. Federal Court awarded respondent damages. Federal Court ruled in favour of respondent’s action against appellant under s. 8 of Regulations. In course of its reasons, Federal Court ruled that 1998 version of s. 8 of Regulations (“1998 Regulations”) applied to this case, and not 1993 version of s. 8 of Regulations (“1993 Regulations”). Appellant appealed from that ruling. Appellant also submitted that Federal Court erred in fact and law in concluding that respondent suffered loss as result of appellant’s prohibition application. Appellant’s appeal was dismissed. Appellant’s application for prohibition was “pending” when 1998 Regulations came into force. Therefore, by operation of transitional provision in 1998 Regulations, 1998 Regulations applied in this case. 1998 Regulations could not be said to be retroactive or retrospective or interfere with any vested rights of appellant. Federal Court Judge correctly held that 1998 Regulations were authorized by s. 55.2(4) of Patent Act (Can.), were valid, and applied in this case. Federal Court found that respondent suffered loss as result of appellant’s prohibition application. Respondent established, to satisfaction of Federal Court, that it was prevented from getting into norfloxacin market because of appellant’s prohibition application. In establishing this, respondent satisfied Federal Court that, on balance of probabilities, it would have had access to available supply of non-infringing norfloxacin. There was sufficient evidence upon which Federal Court could have made factual findings it did, and those findings were not susceptible to review in appellate court.

Apotex Inc. v. Merck & Co. (Nov. 25, 2011, F.C.A., Sexton, Layden-Stevenson and Stratas JJ.A., File No. A-154-10) Decision at 186 A.C.W.S. (3d) 1115 was affirmed. 210 A.C.W.S. (3d) 224 (32 pp.).

Employment

PUBLIC SERVICE

Entitlement to per diem rate of remuneration sufficient to meet employment test

Minister of National Revenue determined that two committee members engaged in pensionable employment under Canada Pension Plan while members of Ontario Judicial Appointments Committee established under Courts of Justice Act (Ont.). Ontario, responsible for remunerating members of committee, successfully appealed. Minister’s appeal allowed. Mandate of committee to recruit, interview and recommend to Attorney General suitable and qualified candidates for appointment as judges to Ontario Court of Justice. Committee
independent of Ministry of Attorney General and provincial government and members not employees but rather holders of an office. They were paid for each day on which they rendered services. Number of days on which services required unpredictable, varying with number of judicial vacancies. Pursuant to Canada Pension Plan definition of “office” and regulations, member of committee engaged in pensionable employment if position carries entitlement to “fixed or ascertainable stipend or remuneration”. Legal entitlement to per diem rate of remuneration established in advance sufficiently “fixed or ascertainable” to meet test.

M.N.R. v. Ontario
(Nov. 16, 2011, F.C.A., Nadon, Sharlow and Dawson JJ.A., File No. A-72-11; A-73-11) 210 A.C.W.S. (3d) 275 (6 pp.).
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